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Dear Reader, 

A former president of the United States invoked his Fifth Amendment right against self-incrimination last week. If you missed it, or forgot about it, you’re forgiven; somehow, it has already become a small-font legal story in the swirl of other unprecedented scandals involving search warrants, the Espionage Act, and insurrection. 

When Donald Trump took the Fifth, during a deposition by the New York Attorney General’s Office, he sparked a predictable Twitter dunk-fest. As many noted gleefully, Trump himself previously proclaimed that “the mob takes the Fifth” and “if you’re innocent, why are you taking the Fifth Amendment?” I get it, and I’m with you. Just as any person has the right to take the Fifth, so, too, does the public have the right to deride the hypocrisy – particularly when it comes from a man who recently held the most powerful office in the world. 

But once we get past the finger-pointing and laughing, here’s the reality: Trump has every right to invoke the Fifth Amendment. And given his current circumstances, including an overtly-politicized investigation by New York AG Letitia James, it was a perfectly reasonable – even justified – course of action.

First things first: it is flatly wrong to say that only guilty people take the Fifth. Trump was wrong when he said it, years ago. And any real practitioner – and anybody who genuinely values our constitutional principles of individual liberty – knows this. Sure, plenty of guilty people take the Fifth; I’ll stipulate that most people who take the Fifth are in fact guilty of something. But how about the wrongly accused? They too can, and do, take the Fifth. And then there’s a vital in-between category of people who are under law enforcement suspicion, whose conduct may or may not have crossed a line into criminality, and whose fates rest in the subjective judgment of prosecutors. They take the Fifth, too. 

Put yourself in Trump’s shoes for a moment. (I know; go with me here.) Imagine that an enormously powerful state attorney general successfully ran for office and fundraised on an explicit campaign promise to go after you, and your family, and your business – by name. 

James did precisely that throughout her successful 2018 campaign for New York AG. It’s not a matter of opinion; it’s fact. She tweeted while on the campaign trail that she was “leading the resistance against Donald Trump in NYC”; “I’ve got my eyes on Trump Tower”; “New Yorkers need a fighter who will take on Donald Trump & stand up for our rights. I’ll be that fighter. Join my campaign”; and “@realDonaldTrump should keep asking about me, because I’m getting ready to ask him some questions — under oath.” James even fundraised off Trump’s name, beseeching donors: “I need your help in this fight against Donald Trump.” 

 Once James took office, she upped the rhetoric. The day after James became AG, she declared, “We’re going to definitely sue him. We’re going to be a real pain in the ass. He’s going to know my name personally.” In an episode of The View, when co-host Joy Behar said, “I believe in putting Trump in jail,” James laughed and replied with a smile, “Joy, you know I love you, right? I do, I do, I do. So, you know I can’t admit or deny.” 

Now, imagine that the same AG has teamed up with local prosecutors on a two-pronged investigation – one civil and one criminal – of you, your family, and your business. That AG already has declared publicly – before she took office, and without access to any actual evidence – that you had “engaged in a pattern and practice of money laundering” and you “can be indicted for criminal offenses.” Since then, the AG has upped the ante by claiming to a judge that her office had “uncovered significant evidence” that you had committed fraud. 

Against that backdrop, you get a subpoena. The AG is going to question you, under oath, in the civil investigation – about the very same topics at the center of the still-pending criminal investigation. 

What would a reasonable person do here? What would you do? 

Some might claim: Well, if I hadn’t done anything wrong, I’d stride right into that deposition, boldly declare my innocence, and set the AG straight. With all due respect: no you wouldn’t. Find me one legitimate defense lawyer who would advise her client to take this absurdly risky tack. This isn’t fantasy land, where the AG – who has explicitly made it her highest professional and political goal to nail you, specifically – suddenly reverses course, swayed by the persuasive force of your declaration of innocence, and issues a public apology clearing you. Think that’s a likely scenario? I don’t either. And that’s precisely why you take the Fifth there.

Much has been made of the fact that Trump reportedly took the Fifth over 400 times during his deposition. But the significance of this number has been whipped up and misunderstood. Again, I know: there’s a social media bonanza to be had here. 400 times! Wow! That means he’s even guiltier than somebody who invokes the Fifth 300 times! But once a subject has decided that he won’t answer certain lines of questioning (or all questions) based on the Fifth Amendment, then the number becomes largely academic. At the SDNY, our policy was generally that, when it becomes clear that a person will take the Fifth on a certain topic, you stop and move on. In fact, if a lawyer informed us in advance that his client would take the Fifth, we typically wouldn’t even insist on going through the motions of calling the person in to testify at all. No need to pile on, or to waste time and resources. They don’t give out trophies to the prosecutor who racks up the most invocations of the Fifth.

The AG was not necessarily out of line, however, in asking Trump so many questions. As the potential plaintiff in a New York civil case – and it looks clear that James will at some point bring a lawsuit against Trump and his business – you’d want to individually break down each time he took the Fifth. That’s because, while an invocation of the Fifth can never be used against any person in a criminal case, it can be used under New York law in a civil case. If and when James files a civil lawsuit against Trump, she can ask a jury to draw what we call an “adverse inference” – meaning to assume the worst about what his testimony would have been – wherever he took the Fifth. That’s fair play under the law, and it’s going to hurt Trump eventually.

More than any other public figure in recent history, Trump has tested the strength of our core, shared democratic principles. Liberals, who traditionally have been the great protectors of civil liberties, at times seem all too willing to discard, or at least to denigrate, those protections when it comes to a person they despise. I really do understand. We’re all human, and emotion drives all of us, for and against divisive figures. But, as unpleasant as the medicine may taste, we need to remember: principles don’t work if we apply them only when we like the outcome.  

We like to say that no person is above the law, or at least aspire to that goal. But we also need to keep in mind that, in our justice system, neither is anybody beneath the law’s protections.

Stay Informed,

Elie